Rule 1-104.Courtroom closure

Prior to 2018, Subparagraph (B)(1) of this rule required the automatic closure of hearings in guardianship and conservatorship proceedings. See also NMSA 1978, § 45-5-303(K) (2009, prior to 2018 amendments) (“The issue of whether a guardian shall be appointed . . . shall be determined by the court at a closed hearing unless the alleged incapacitated person requests otherwise.”); § 45-5-407(O) (1998, prior to 2018 amendments) (same for conservatorship proceedings). The rule was amended in 2018 to remove guardianship and conservatorship proceedings from Subparagraph (B)(1), consistent with the 2018 amendments to the Uniform Probate Code. See NMSA 1978, § 45-5-303(N) (2018) (“The issue of whether a guardian shall be appointed . . . shall be determined by the court at an open hearing unless, for good cause, the court determines otherwise); § 45-5-407(Q) (2018) (same for conservatorship proceedings). As a result, hearings in guardianship and conservatorship proceedings are presumptively open to the public and shall be closed only when the requirements of Paragraphs C through E of this rule have been satisfied.

Aside from entire categories of cases that may be closed in accordance with statutory authority, numerous statutes identify particular types of information as confidential or otherwise subject to limitations on disclosure. See, e.g., NMSA 1978, § 27-7-29(A) (providing that “[a]ll records . . . created or maintained pursuant to investigations under the Adult Protective Services Act . . . shall be confidential and shall not be disclosed directly or indirectly to the public”); NMSA 1978, § 43-1-19 (limiting the disclosure of information under the Mental Health and Developmental Disabilities Code); committee commentary to Rule 1-079 NMRA (listing statutory confidentiality provisions). This rule does not authorize automatic courtroom closure for proceedings involving information designated by statute as confidential unless the statute expressly provides that the proceedings shall be closed. Instead, if a party believes that courtroom closure is warranted for any reason, including the protection of confidential information, such party may file a motion for courtroom closure under Subparagraph (C)(2) of this rule. And statutory confidentiality provisions notwithstanding, the court must still engage in the balancing test set forth in Paragraph E of this rule before deciding whether to close any particular proceeding and must provide for public notice and hearing as set forth in Paragraph D of this rule prior to entering any order for courtroom closure. When determining whether a motion for courtroom closure is supported by an overriding interest, the court should consider any statute, regulation, rule, or other source of law that addresses courtroom closure in the particular type of proceeding. See, e.g., NMSA 1978, §§ 45-5-303(N), 45-5-407(Q) (2018) (“The issue of whether a [guardian or conservator] shall be appointed . . . shall be determined by the court at an open hearing unless, for good cause, the court determines otherwise.”).

The prerequisites to a courtroom closure order, as set forth in Paragraph E, are taken from State v. Turrietta, 2013-NMSC-036, ¶¶ 17, 19, 308 P.3d 964, which provides that the court cannot order a full or partial closure of the courtroom unless the closure is warranted under the four-factor “overriding interest” standard set forth in Waller v. Georgia, 467 U.S. 39 (1984). Under Waller,

[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the [district] court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.

Turrietta, 2013-NMSC-036, ¶ 17 (alteration in original) (quoting Waller, 467 U.S. at 48).

Courts are obligated to consider reasonable alternatives to courtroom closure. See id. ¶¶ 28, 30; Presley v. Georgia, 558 U.S. 209, 214-15 (2010). For example, if the alleged overriding interest is the potential for witness intimidation, reasonable alternatives to closure might include “screening observers, admonishing spectators of possible criminal sanctions, the wait-and-see method, or increased security in the courtroom.” Turrietta, 2013-NMSC-036, ¶ 29 (internal citations omitted). Or, to protect sensitive information conveyed by potential jurors during jury selection, the court could consider alternatives to closure such as sealing “[t]hose parts of the transcript reasonably entitled to privacy” or disclosing “the substance of the sensitive answers while preserving the anonymity of the jurors involved.” Press-Enterprise Co. v. Superior Court of Cal., Riverside Cnty., 464 U.S. 501, 513 (1984). The range of reasonable alternatives available to the court will depend on the circumstances.

Except for proceedings that are closed automatically under Paragraph B, this rule permits public participation prior to the issuance of an order closing a courtroom proceeding. Under Subparagraph (C)(2), a non-party may file a motion for courtroom closure if such non-party has a sufficient interest in closing the proceeding, for example, if such non-party is the subject of testimony or evidence. Under Paragraph D, the public is entitled to notice and an opportunity to be heard before a courtroom proceeding is closed. The court shall follow the procedure developed by the Supreme Court for providing notice of public hearings to media organizations and other persons and entities who have requested to receive notice under Subparagraph (D)(1) of this rule.

This rule shall not diminish the court’s inherent authority to exclude disruptive persons from the courtroom to ensure decorum, prevent distractions, and ensure the fair administration of justice.

[Adopted by Supreme Court Order No. 16-8300-022, effective for all cases pending or filed on or after December 31, 2016; as amended by Supreme Court Order No. 18-8300-005, effective for all cases on or after July 1, 2018.]